Presumably Felonious Lawyer Makes Terrible Statistical Argument

October 10, 2012

The State of Florida offered this argument in a brief filed last week:

Given the small percentage of the population [about 5%] that is licensed to carry a concealed firearm, the overwhelming majority of firearms, or 95%, are not licensed to be concealed. Thus, an officer’s suspicion that a [concealed] firearm is not licensed would be reasonable because, in any given case, there would be, statistically speaking, a 95% likelihood of illegality.

Pretty sure whoever wrote that did not think it through, because as shown below it would mean that he or she is probably a felon.

The case involved a motion to suppress evidence that the defendant had been carrying a gun (that evidence: the gun) on the grounds that the arresting officer didn't have reasonable suspicion to justify a Terry stop. The officer testified that he "observed a solid object inside of [the suspect's] pocket" as he was driving by, which suggests some pretty remarkable powers of observation but I suppose is not impossible. As he got closer, he said, he was able to see the handle of a gun sticking out, and for that reason and because this occurred in a "known narcotics location," he stopped to investigate. It was indeed a gun, and the defendant was arrested when he could not produce a concealed-weapons permit. (It is apparently illegal in Florida to carry a gun openly, but legal to carry it secretly if you have a permit.)

The defendant argued that the officer's suspicion could not have been reasonable because it's legal to carry a concealed weapon if you have a permit, and so just spotting a (poorly) concealed weapon can't be enough to justify a stop. That is, the officer might have reasonably suspected the defendant had a gun but had no particular reason to suspect he was doing anything illegal by carrying it.

Florida courts are split on this question, but those that hold such a search doesn't violate the Fourth Amendment have reasoned that, under state law, having a permit is an affirmative defense. In other words, all the state has to show is that you had a concealed weapon; it's your burden to come forward with a permit. Because the lack of a permit isn't an element of the crime, it's irrelevant to whether the stop was constitutional. It's not too surprising to me that at least one court has held the opposite, because this interpretation arguably permits a Terry stop with no evidence whatsoever that a crime is being committed. But that point is at least arguable.

What is not arguable, though, is the state's backup argument, namely the statistical horribility quoted above.

As Eugene Volokh pointed out, applying the same reasoning, we could reasonably suspect that whoever wrote that brief isn't authorized to practice law. Given the small percentage of the population (less than one percent) that is licensed to practice law, it follows that the overwhelming number of briefs filed are (in the author's words) "not licensed to be filed"; thus, a suspicion that the author of the brief is not licensed would be reasonable because in any given case, there would be, statistically speaking, a greater than 99% likelihood of illegality.